People v. Davydov

• Decision Date: 30 November 2016
• Parties: The PEOPLE, etc., respondent, v. Nisim DAVYDOV, appellant.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1170

43 N.Y.S.3d 74

2016 N.Y. Slip Op. 08090

The PEOPLE, etc., respondent,

v.Nisim DAVYDOV, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 30, 2016.

Seymour W. James, Jr., New York, NY (Paul Wiener of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Deborah E. Wassel of counsel), for respondent.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, LEONARD B. AUSTIN, and HECTOR D. LaSALLE, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered October 4, 2013, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial.

The defendant and the codefendants, Emanuel Gurgov, Marik Kravchenko, and David Davydov, were charged with assaulting Sergey Yusupov with baseball bats outside of a pizzeria in Queens on October 27, 2011. After a joint jury trial, the defendant was convicted of assault in the second degree.

Contrary to the defendant's contention, the Supreme Court did not err in declining to submit to the jury the lesser-included offense of assault in the third degree, since no reasonable view of the evidence would have supported a finding that the defendant committed assault in the third degree but did not commit assault in the second degree (see CPL 1.20[37] ; 300.50[1]; see generally People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376 ).

However, under the circumstances presented, we agree with the defendant that he was deprived of his right to effective assistance of counsel due to the cumulative effect of defense counsel's failure to seek a severance of the defendant's trial from that of codefendant David Davydov once it became clear that they were pursuing antagonistic defenses, and failure to request a missing witness charge for an eyewitness who was not called to testify at trial (see People v. Mehmood, 112 A.D.3d 850, 977 N.Y.S.2d 78 ; see also People v. Mahboubian, 74 N.Y.2d 174, 544 N.Y.S.2d 769, 543 N.E.2d 34 ; People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 502 N.E.2d 583 ; cf. People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).

The right to effective assistance of counsel is guaranteed by the federal and state constitutions (see U.S. Const. Amend VI ; NY Const., art. I, § 6 ; People v. Turner, 5 N.Y.3d 476, 479, 806 N.Y.S.2d 154, 840 N.E.2d 123 ). "Under the federal standard for ineffective assistance of counsel, a defendant must show that his or her attorney's performance fell below an objective standard of reasonableness, and that ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different’ " (People v. Bodden, 82 A.D.3d 781, 783, 918 N.Y.S.2d 141, quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 ). Under the state standard, a court must examine whether " ‘the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation’ " (People v. Oliveras, 21 N.Y.3d 339, 346, 971 N.Y.S.2d 221, 993 N.E.2d 1241, quoting People v. Baldi, 54 N.Y.2d at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; see People v. Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ). In reviewing claims of ineffective assistance, "care must be taken to avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis" (People v. Satterfield, 66 N.Y.2d 796, 798, 497 N.Y.S.2d 903, 488 N.E.2d 834 [internal quotation marks omitted]; see People v. McArthur, 101 A.D.3d 752, 753–754, 956 N.Y.S.2d 71 ). Moreover, to prevail on a claim of ineffective assistance of counsel, a defendant must " ‘demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings' " (People v. Taylor, 1 N.Y.3d 174, 176, 770 N.Y.S.2d 711, 802 N.E.2d 1109, quoting People v. Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ). Where a defendant fails to carry that burden, "it will be presumed that counsel acted in a competent manner and exercised professional judgment" (People v. Taylor, 1 N.Y.3d at 177, 770 N.Y.S.2d 711, 802 N.E.2d 1109 [internal quotation marks omitted] ).

Where a defendant claims prejudice as a result of a joint trial because his defense is antagonistic to that of a codefendant, "severance is not required solely because of hostility between the parties, differences in their trial strategies or inconsistencies in their defenses" (People v. Mahboubian, 74 N.Y.2d at 184, 544 N.Y.S.2d 769, 543 N.E.2d 34 [internal quotation marks omitted] ). However, "severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt" (id. ). Thus, severance should be granted where the defenses are not only antagonistic, but also mutually exclusive and irreconcilable (see id. at 185–186, 544 N.Y.S.2d 769, 543 N.E.2d 34 ). Although a severance motion must generally be made before the commencement of trial (see CPL 200.40[1] and 255.20[1] ; People v. Matthews,

201 A.D.2d 588, 607 N.Y.S.2d 738 ), CPL 255.20(3) permits a pretrial motion to be made and decided "at any time before the end of trial" when "the defendant could not, with due diligence, have been previously aware" of the basis for the motion. CPL 255.20(3) further provides that the court may, "in the interest of justice, and for good cause shown," entertain and dispose of a pretrial motion "at any time before sentence."

Here, the record reveals that throughout the trial, counsel for David Davydov pursued a defense which was antagonistic to that of the defendant. This was evident during his opening statement, his cross-examination of Yusupov, and his summation, during which he presented a theory that the defendant had called David Davydov, who was his uncle, to the scene to mediate a business dispute between the defendant and Yusupov, and further theorized that this dispute involved the defendant's desire to have Yusupov participate in a fraudulent medical scheme involving the operation of a medical center. Counsel's statements also indicated that when David Davydov arrived at the scene of the incident, he observed the defendant in an altercation and intervened. This defense was clearly antagonistic to the theory of the defendant's defense, which essentially...